Academic

Wick on Conditional Federal Grants, the Spending Power, & Independent Constitutional Bars

By Lawrence Solum

Douglas Wick (New York University Law School) has posted Rethinking Conditional Federal Grants and the Independent Constitutional Bar Test (Southern California Law Review, Vol. 83, p. 1359, 2010) on SSRN. Here is the abstract:

The Spending Clause has been interpreted to grant extremely broad discretion for Congress to offer conditional grants to the states - most recently in South Dakota v. Dole. Criticism of the deferential Dole standard abounds. Once the Rehnquist Court began reasserting federalism limits, however, most thought it was only a matter of time until the spending power was similarly limited. Those predictions never came to fruition.

This Note argues that the Spending Clause should be limited by reinterpreting the independent constitutional bar test described in Dole. Many have argued for limiting the spending power, but the possibility of using the independent constitutional bar test for this purpose has been almost completely ignored. The current test tautologically bars only grants with facially unconstitutional conditions. The new interpretation of the independent constitutional bar test proposed in this Note would invalidate any condition that could not be pursued directly by the federal government.

This new interpretation is supported by United States v. Butler, the authoritative case on the scope of the spending power according to the Dole Court. It also makes more sense in light of the New Federalism cases that reasserted limits on federal power. Federalism is not adequately protected by the political process, contrary to the claims of some, and this new interpretation of the independent constitutional bar test would help to preserve it. This is worthwhile since federalism tends to increase both individual liberty and overall well-being.

This Note will proceed as follows. Part II will briefly summarize the spending power and Dole. It will then contrast current Spending Clause doctrine with the unconstitutional conditions doctrine, and argue against the second-class treatment afforded federalism interests. Part III will analyze the legal origins of the independent constitutional bar test, as well as Dole?s interpretation of it. Part III will continue by critiquing the Court?s current interpretation of the independent constitutional bar test. Part IV will propose a new independent constitutional bar test that is both constitutionally and normatively superior to the current test. Part IV will also explain why political safeguards cannot be relied on to protect federalism interests, and why extremely broad interpretations of the spending power are unconvincing. Part V will conclude the Note.

An interesting student note.

Full post as published by Legal Theory Blog on November 13, 2010 (boomark / email).